Hiv in Austria – Defendant Acquitted in Graz Blackmail-Case

Once again an Austrian state-prosecutor attempted to criminalize state endorsed safer sex rules. This time in the Styrian capital Graz. Rechtskomitee LAMBDA (RKL), Austria’s LGBT civil rights organisation, urges the Minister of Justice, for the sake of public health, to stop such prosecutions.

The accused, who has no criminal record, is Hiv-positive. The state prosecutor initiated proceedings against him after another Hiv-positive man had accused him of infecting him with Hiv. Indeed the two men had sex with each other years ago, but in accordance with the safer sex rules propagated by the Ministry of Health and the Aids Service organisations (oral sex without ejaculation into the mouth).

Not the blackmailer prosecuted but the victim

The accuser, who has a massive criminal record of violent, drug and property offences, reported the defendant to the police (for anal intercourse without a condom and for insertive oral sex without ejaculation) years after the sexual contact and only after the man refused to fulfill his considerable financial demands (EUR 50.000-100.000,–). In addition the accuser admitted during his interrogation that he had unprotected sex with others, and he had searched for casual sex (“sexdates”) in the internet displaying in his profile “Safer Sex: Never”. Even more so the man, according to his own depositions, is addicted to heroin and thus had been exposed also to other non-sexual ways of transmission.

The case against the accuser (for aggravated blackmail) has been dropped immediately after the interrogation of both men due to „conflicting depositions“. Not so the case against the other man. He has been prosecuted for the offence of endangering humans by transmittable diseases (Art. 178 Criminal Code). Also unprotected sex between hiv-positives would be an offence and also oral sex without ejaculation into the mouth would constitute criminal behavior, the prosecutor said, contrary to state endorsed safer sex rules ((http://www.aids.at/alles-uber-hivaids/wie-kann-ich-mich-schutzen/; http://www.aidshilfen.at/sie-haben-fragen-wir-haben-antworten; https://www.gesundheit.gv.at/Portal.Node/ghp/public/content/Safer_Sex.html).

Prosecutor indicted safer sex

The Regional Court for Criminal Affairs of Graz refused to open the trial and rejected the weird prosecution, as it seemed not likely that the man would get convicted. Sex between hiv-positives would not be criminal and the prosecution had not even attempted to establish if the accuser at the time of the sexual contact could already have been infected. In addition varying probabilities of infection in anal and oral intercourse would indeed have to be considered. The prosecutor appealed but the Appeals Court of Graz confirmed the rejection of the prosecution (OLG Graz 16.02.2012, 8 Bs 40/12m).

Only then the prosecutor asked for the accuser´s latest hiv-negative test. Despite the fact that this test turned out to have been already two months old at the time the two men had their sexual contact, the prosecutor stubbornly once again tabled his bill of indictment, including again insertive oral sex without ejaculation, which is in accordance with the state endorsed safer sex rules.

After two days of trial the Regional Court for Criminal Affairs of Graz acquitted the defendant yesterday from the prosecution (endangering of public health by insertive oral sex without ejaculation and by insertive anal intercourse without a condom). Before the accuser himself had admitted before the court that he had sex not only with the defendant but also with other men and his physician testified that the accuser`s hiv-infection had not been fresh these days but rather one to three years old.

Double game played by the Justice?

In 2010 the Austrian Minister of Justice on the occasion of the Vienna World Aids-Conference had assured that Austrian criminal law would not criminalize sexual acts in accordance with the safer sex rules and declared that the prosecutors would be informed to this effect (4941/AB, 2 June 2010, http://www.parlament.gv.at/PAKT/VHG/XXIV/AB/AB_04941/).

Nevertheless last spring a 17 year old juvenile has been convicted for oral sex (without the allegation of ejaculation) with the judge even claiming that the use of a condom would not have made a difference (http://vorarlberg.orf.at/news/stories/2523707/). And just last Monday in Vienna a man had to face trial indicted explicitly and exclusively for oral sex without (!) ejaculation, behaviour explicitly propagated by the health authorities and the aids-service-associations. Also this man, like the one now in Graz, has been acquitted by the court, the judge saying that he behaved entirely properly (http://kurier.at/chronik/wien/hiv-ambulanz-im-wiener-akh-leidet-unter-personalmangel/1.926.101#section-1926299
http://derstandard.at/1355459879510/Safer-Sex-Regeln-eingehalten-Freispruch-fuer-HIV-Positiven-in-Wien). Not always however judges are so rational as these two judges, and even after acquittal the trauma of criminal prosecution and trial remains, as the costs for the defense do.

Austria Top Ten in hiv-criminalization

Austria finds itself within the top ten worldwide regarding criminal conviction rates of hiv-positive persons (http://www.gnpplus.net/criminalisation/node/1262). Germany never had such a special offence and Switzerland recently restricted its law (which never had been as far-reaching as the Austrian one) to infection with malicious intent, thereby implementing a recommendation by the Swiss Commission on Aids (now: Swiss Commission on Sexual Health) (http://www.bag.admin.ch/hiv_aids/05464/12494/12821/, document for download on the right side). UNAIDS and the EU-Fundamental Rights Agency for years have been calling for a repeal of such criminalisation of hiv-positive persons and for restriction of criminal offences to intentional infection (http://www.unaids.org.fj/index.php?option=com_content&view=article&id=162:unaidsundp-policy-brief-criminalization-of-hiv-transmission-&catid=25:technical-documents&Itemid=74; http://fra.europa.eu/en/publication/2010/rights-based-approach-hiv-european-union, http://www.hivjustice.net/oslo/oslo-declaration/).

„We are urging the Minister of Justice to stand by the 2010 assurances and stop such prosecutions“, says president of Rechtskomitee LAMBDA (RKL) and defence counsel of the man, Dr. Helmut Graupner, “UNAIDS for years has been warning that such criminalization of hiv-positive people endangers effective hiv-prevention and thereby public health”.

Rechtskomitee LAMBDA (RKL), founded in 1991, on a supra-partisan and denominational level is working for the implementation of human rights for homo- and bisexual men and women. In its honorary board it convenes as prominent members as former Prime Minister Dr. Alfred Gusenbauer, President of Federal Parliament Mag. Barbara Prammer, former Minister of Justice Mag. Karin Gastinger, the Honorary President of the Parliamentary Assembly of the Council of Europe Peter Schieder, Federal Ombudsman Mag. Terezija Stoisits, Senator Marco Schreuder, former Director of Public Security Dr. Erik Buxbaum, the former President of National Judges Association Dr. Barbara Helige, the Chairwoman of the National Judges Association’s Working Party on Fundamental Rights Dr. Mia Wittmann-Tiwald, the Vice-President of the Vienna Bar-Association Dr. Elisabeth Rech, the former President of D.A.S.-legal expenses insurance company Dr. Franz Kronsteiner, the President of Weisser Ring Dr. Udo Jesionek, the Secretary General of Amnesty International Austria Mag. Heinz Patzelt, the Vice-Chairperson of the Executive Board of the European Union Agency for Fundamental Rights Univ.-Prof. Dr. Hannes Tretter, and the well-known human-rights experts Dr. Lilian Hofmeister and Univ.-Prof. Dr. Manfred Nowak, the constitutional law professors Univ.-Prof. Dr. Christian Brünner, Univ-Prof. Dr. Bernd-Christian Funk, Univ.-Prof. Dr. Heinz Mayer and Univ.-Prof. Dr. Ewald Wiederin, famous child- and adolescent psychiatrist Univ.-Prof. Dr. Max Friedrich and the Vienna Child- and Youth-Ombudspersons DSA Monika Pinterits and Dr. Anton Schmid, sexologists Univ.-Prof. Dr. Josef Christian Aigner, Univ.-Prof. Dr. Rotraud Perner and Univ.-Lekt. Mag. Johannes Wahala, Life-Ball-Organisor Gery Keszler and many more. October 2nd, 2006, RKL’s 15 years anniversary has been celebrated in historic Ceremonial Act “Against Sexual Apartheid” in the lower chamber of Austrian federal parliament. This first honouring of an lgbt organisation in the plenary session hall of a national parliament worldwide took place in attendance of over 500 guests including highest representatives from the judiciary, administration and politics (http://www.rklambda.at/festakt/index.htm). Since 2010 RKL is a member of the Fundamental Rights Platform of the European Union Agency for Fundamental Rights (www.fra.europa.eu).